Text from Fridays Greenshift motion to keep Cantrell off the stand.
If Cantrell is the only chance for the infringers to have a shot at invalidating the patent they are desperately clutching at straws.....
I think we are watching the last few moves in a long game of chess and are backing the winning oponent. GLTA
PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION TO STAY ALL PROCEEDINGS
IN THIS LITIGATION WITH RESPECT TO DAVID CANTRELL
Plaintiff GS CleanTech Corporation (“CleanTech”) respectfully submits that it has shown
good cause to support its motion to stay all proceedings in this litigation for at least six (6)
months with respect to David Cantrell (“Mr. Cantrell”).
Defendants' arguments opposing CleanTech’s motion are inapposite. As explained
below, (1) CleanTech provided to Defendants an opinion from Mr. Cantrell's doctor in
conformance with the Court's Order; (2) Defendants' reliance on Fed. R. Evid. 702 and Daubert
is misplaced; and (3) CleanTech has complied with the Court’s Order. More broadly, however,
Defendants’ arguments reflect a hypertechnical rationale to coerce Mr. Cantrell, who suffers
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from serious medical issues, to immediately re-engage in this litigation despite his doctor’s
warning of severe health risks in doing so.
A. CleanTech Provided a Doctor's Note in Conformance With the Order
The Court's Order provided that “[a]ny delays in scheduling Mr. Cantrell’s deposition
immediately because of health reasons… must by supported by an opinion of Mr. Cantrell’s
doctor provided to the defendants’ counsel.” (Dkt. #105, pp. 12-13). On November 29, 2011,
counsel for CleanTech provided counsel for each Defendant with just that - a letter from Mr.
Cantrell's doctor which included an opinion that Mr. Cantrell was unable to proceed with a
deposition for 6 to 9 months and also indicated that it would be a very high risk to ask Mr.
Cantrell to participate in any activity or preliminary discussion due to the reasons set forth in the
letter. Consequently, the letter fully complies with the Court's Order and justifies the stay
requested.
B. The Doctor's Note is Not Subject to Rule 702
Interestingly, it was not until the filing of Defendants' opposition that Defendants raised
any issue with Mr. Cantrell's doctor's letter that had been produced almost two months prior. If
Defendants truly had issues with the doctor's letter, one would expect that they (or at least one
Defendant) would have raised those issues immediately after receipt of the letter rather than first
raising such issues in their opposition. Nonetheless, the doctor's letter is not being offered as
expert testimony in connection with the actual litigation but is only related to Mr. Cantrell's
medical condition. Consequently, Defendants reliance on Rule 702 of the Federal Rules of
Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) is not only
inapposite to this situation but is beyond the scope of the Court's Order requiring "an opinion of
Mr. Cantrell’s doctor."
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An instructive and similar situation was addressed Downing v. LifeTime Fitness, Inc.,
2011 WL 2015514 (E.D. Mich. May 24, 2011). In that case, one of defendant's witnesses was
unable to testify at a deposition due to a medical condition. Defendant filed a motion for a
protective order and provided a letter from the witnesses' doctor for an in camera inspection.
After review of the letter, the Magistrate Judge concluded that there was clear justification for a
protective order to issue. Plaintiff objected to the protective order issued by the Magistrate Judge
arguing that "a concealed doctor's note does not nearly rise to the level of 'good cause' under
FRCP 26(c) because [the witness] has personal knowledge of highly relevant information." Id.
at *3. Despite plaintiff's arguments, the court, upon review, concluded that the objections lacked
merit. Id. at *4. Not only was the doctor's letter in Downing not subject to Rule 702 or Daubert,
but the plaintiff was not even able to review the doctor's note.
Defendants go on to ignore the documented factual showings in the doctor's letter
supporting the opinion that - for the next several months - Mr. Cantrell's continued participation
in the litigation could cause serious injury. Instead, Defendants choose to medically diagnose
Mr. Cantrell themselves based simply upon their apparent visual observations of Mr. Cantrell at
the deposition and in the airport. (See Opposition, p. 8; Decl. of Daniel J. Lueders, ¶ 3
(describing himself as “a medical layperson”); and Decl. of John M. Weyrauch, ¶ 2).
Nevertheless, despite Defendant's assertions otherwise, in addition to the opinions
regarding the current ability of Mr. Cantrell to participate in this litigation, the doctor’s letter
includes factual showings supporting the opinion. For example, in the letter, Mr. Cantrell's
doctor: (1) indicates that he has treated Mr. Cantrell since January of 2004, (2) outlines Mr.
Cantrell's medical history and prior treatments; (3) outlines the litany medical issues that Mr.
Cantrell currently suffers from; and (4) discusses the examination that took place in October. As
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such, the doctor's letter produced by Mr. Cantrell in this case is far different than the note
produced in the case relied upon by Defendants, Medlin v. Andrews, 113 F.R.D. 650, 652
(M.D.N.C 1987), which was a note from plaintiff's psychiatrist "which briefly states that plaintiff
has been showing progressive deterioration in her mental state and is anxious and disorganized."
(See Opposition, p. 8)
C. Access to Mr. Cantrell's Medical Records Should Be Denied
As set forth above, because the doctor's letter contains specific and documented factual
showings that Mr. Cantrell's current participation in the litigation would be dangerous to his
health, Defendants' request to access his medical records and depose his doctors (all of which
will no doubt cause further stress on Mr. Cantrell) should be denied.
The same request was made in Downing v. LifeTime Fitness, Inc., 2011 WL 2015514. As
set forth above, the plaintiff in Downing objected to the protective order issued by the Magistrate
Judge arguing that "a concealed doctor's note does not nearly rise to the level of 'good cause'
under FRCP 26(c) because [the witness] has personal knowledge of highly relevant information."
Id. at *3. The court however concluded as follows:
The Court can see no reason why Plaintiff is entitled to review information
related to [the witness'] medical condition. While [the witness'] testimony
may be relevant to this litigation, the medical reasons preventing her
from attending a deposition are not.
Id at *4 (emphasis added).
Similarly, Defendants' request to access Mr. Cantrell's medical records and depose his
doctors should be denied.
D. CleanTech Complied with the Court's Order
The Court stated in its November 4 Order that “reassessments of Mr. Cantrell’s health by
a written opinion of Mr. Cantrell’s doctor—to the extent it continues to delay his deposition—
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must be made every three weeks and also supplied to the defendants’ counsel.” (Dkt. # 105, p.
13)
In the November 29 email from Mr. Rye to Defendants’ counsel, Mr. Rye noted that the
doctor’s letter contained new information regarding Mr. Cantrell's medical condition, notably the
opinion regarding the length of time that Mr. Cantrell should not participate in this litigation. In
view of that new information, and rather than simply sending the same letter every three weeks,
Mr. Rye stated that “I would be happy to discuss this matter with you and the magistrate judge if
you require a follow-up report within the next four months.” (Exh. I to Defendants’ Opposition).
Not only did Defendants fail to raise any issue in response to the e-mail, they failed to
respond at all. Once again, if Defendants truly had an issue, they would have raised it prior to
their opposition to the motion.
Finally, it is noteworthy that the patent-in-suit has just two inventors, one of which is Mr.
Cantrell. Defendants will be jointly deposing the other inventor on the patent-in-suit for two
days in mid-February.
E. Conclusion
For at least the above reasons, CleanTech respectfully requests that all proceedings in this
litigation be stayed for at least six (6) months with respect to Mr. Cantrell including reviewing
his deposition transcript and submitting errata sheets until such time as his doctors determine that
he is physically able to participate in this action.
